From: Stephen Walmsley <stephenlwalmsley@gmail.com>
To: Peter Radan <peter.radan@mq.edu.au>
CC: obligations@uwo.ca
Date: 26/02/2014 23:12:10 UTC
Subject: Re: Written Judgements
I was a judge of the NSW District Court for many years and acted at times on the NSW Supreme Court.

Judges of those courts have the option of giving either  written or oral reasons. 

My practice was to give oral judgments whenever possible because it was easier and they could be delivered more quickly, and minor errors could be corrected if I was asked to correct the transcript for an appeal. Transcripts of oral reasons are routinely and quickly provided to Supreme Court judges but not to  District Court judges.  There is no requirement for District Court judges to correct the transcripts of oral reasons absent an appeal. Thus many of that court's judgments are unavailable and indeed unknown. That court does have a method of having judgments placed on the web but the system is entirely voluntary and some judges report everything and others nothing.

The NSW Supreme Court judgments given orally are more likely than District Court judgments to be corrected and made available on a website and most are placed on the website. Although it is a matter left to the discretion of the individual judges  they are encouraged to place all judgments of any significance on the net. Early provision of transcripts in that court is an encouragement. In the District Court it can take several months for a transcript to be supplied.

Stephen Walmsley SC
Sent from my iPad

On 26 Feb 2014, at 7:14 am, Peter Radan <peter.radan@mq.edu.au> wrote:

Colleagues,
 
Thank you to all who have contributed a reply to my query. I might note that my query stems from work done by one of my post-graduate students in relation to resolution of mining disputes in colonial New South Wales and Victoria in the 19th century. The disputes were heard before dedicated courts and tribunals. A particular feature there was that the entirety of the proceedings, including the decision and reasons for the decision, were oral and in many cases the hearings were undertaken on the spot.
 
I must confess that the absence of any requirement that judgments, setting out both the decision and reasons for it, seems to be at odds with what the  law should represent. By the same token, the extreme length of some judgments in recent years, especially in the recitation of facts, is also a cause for concern, if only because, as an academic, I often have to wade through seemingly endless pages of facts, for very little, and usually no, benefit.
 
Peter


On 26 February 2014 02:54, Harrington Matthew P. <matthew.p.harrington@umontreal.ca> wrote:

Following (admittedly very loosely) on this point :  I note the existence in the US of the FISA Court, the “Foreign Intelligence Surveillance Court.”  It hears petitions from the security services for wire taps, massive data collection techniques, etc.

 

It is composed of Article III judges, who are seconded to FISA from other federal district and courts of appeals.  But, the FISA court sits in secret and issues its judgements in secret.  In rare cases it permits an opinion to be published in part.

 

What, if anything, does that say about human rights and the development of the law?  How can there be law if the court renderss its conclusions secret?  A tree falling in the woods question, I suppose.

 

---------------------------------------------

Matthew P. Harrington

Professeur

Faculté de droit

Université de Montréal

Montréal, Québec

514.343.6105

matthew.p.harrington@umontreal.ca

----------------------------------------------

 

De : Gerard McMeel [mailto:gerard.mcmeel@guildhallchambers.co.uk]
Envoyé : 25 février 2014 09:32
À : Nathan TAMBLYN (Faculty of Law); Peter Radan; obligations@uwo.ca
Cc : gerard.mcmeel@manchester.ac.uk
Objet : RE: Written Judgements

 

There is no obligation in England and Wales to provide a written judgment – Civil Procedure Rules part 40 deals with judgments, but as the commentary in Civil Procedure 2013 (“the White Book”) para 40.2.5 makes clear that judgments may be either oral or written. Generally because of the Human Rights Act 1998 (and ECHR arts 6 and 10) they must be given in public. The vast majority of interlocutory and many first instance trials still conclude with oral judgments. As Nathan states they are taped and may be transcribed (usually for appeal purposes).

 

Kind regards

 

Gerard McMeel

University of Manchester, UK

 




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From: Nathan TAMBLYN (Faculty of Law) [mailto:tamblyn@cuhk.edu.hk]
Sent: 25 February 2014 14:22
To: Peter Radan; obligations@uwo.ca
Subject: RE: Written Judgements

 

I stopped practising as a barrister in England in 2006, but at that time ex tempore judgments were still handed down. But you could always ask for a transcript, so oral judgments still end up in writing.

Nathan


-----Original Message-----
From: Peter Radan [mailto:peter.radan@mq.edu.au]
Sent: Tue 2014/02/25 21:58
To: obligations@uwo.ca
Subject: Written Judgements

Colleagues,

This is a query not specifically focussed on obligations. It has to do with
court judgments being in some written form and court reporting.

On page 1216 of the Volume XI of *The Oxford History of the Law of
England*(2010), there is reference to a claim made in in *The
Times* of London to the effect that, in the 1880s or thereabouts, '99
percent of [common law] judgments were still unwritten'.

On the following page there is mention of the failure of a committee, set
up to look into the publication of authorised reports of cases, to pass a
motion calling for the introduction of a requirement that all judgments be
written, 'so far as practical'.

This brings me to my question: When, if ever, did the requirement that
judgments be in written form come into force?

If anybody can shed any light on this with respect to their own
jurisdictions, I would be most grateful.

Many thanks in advance.

Peter Radan

--
Professor Peter Radan
Macquarie Law School
Faculty of Arts
Macquarie University   NSW   2109
AUSTRALIA

Tel:     +61 (0)2 9850-7091
Fax:    +61 (0)2 9850-7686
Email: peter.radan@mq.edu.auColleagues,




--
Professor Peter Radan
Macquarie Law School
Faculty of Arts
Macquarie University   NSW   2109
AUSTRALIA

Tel:     +61 (0)2 9850-7091
Fax:    +61 (0)2 9850-7686
Email: peter.radan@mq.edu.au